Hualand Ida Rd Pty Ltd v Mosman Council [2020] NSWLEC 1451

Hualand Ida Rd Pty Ltd v Mosman Council [2020] NSWLEC 1451

The Court upheld the appeal and granted development consent because, after the parties reached agreement at conciliation, the Commissioner was satisfied under s 34(3) of the Land and Environment Court Act 1979 that the agreed decision was one the Court could make in the proper exercise of its functions, having considered the relevant statutory and planning requirements and finding no jurisdictional impediment.

Jurisdiction
Australia
Judgment Date
25 September 2020
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of a Development Application / Final Orders Following Hearing and Conciliation Conference Under S 34(1)(a) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development consent granted subject to the conditions in Annexure A.
Legal Topics
['development Application' 'demolition and Construction of Residential Flat Building' 'amended Plans' 'conciliation Agreement' 'development Consent' 'basix' 'contamination' 'heritage Impact' 'scenic Protection' 'development Standards']
['planning and Environment Law'] ['development Application' 'demolition and Construction of Residential Flat Building' 'amended Plans' 'conciliation Agreement' 'development Consent' 'basix' 'contamination' 'heritage Impact' 'scenic Protection' 'development Standards']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of a Development Application / Final Orders Following Hearing and Conciliation Conference Under S 34(1)(a) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether leave should be granted to amend the development application and rely on amended plans and documents.' "Whether the parties' agreed decision to uphold the appeal and grant development consent was one the Court could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether the proposed development satisfied relevant planning controls and considerations, including owner consent, contamination, BASIX, zoning, development standards, heritage impacts, scenic protection and notification.']

Ratio Decidendi

The Court upheld the appeal and granted development consent because, after the parties reached agreement at conciliation, the Commissioner was satisfied under s 34(3) of the Land and Environment Court Act 1979 that the agreed decision was one the Court could make in the proper exercise of its functions, having considered the relevant statutory and planning requirements and finding no jurisdictional impediment.

Court Disposition

Appeal upheld; development consent granted subject to the conditions in Annexure A.

Orders

  • ["Leave is granted to the Applicant's to amend the development application and rely on the plans and documents listed under condition 1 of Annexure A." "The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the development application." 'The appeal is upheld.' 'Development...